In his law review article, Morgan pulled apart the Supreme Court decision in Kilbourn v. Thompson, a case decided in 1881. For years this case had cast some doubt on the rights of the Congress to conduct broad investigations to carry out its legislative function. Morgan pointed out that Kilbourn v. Thompson was a discredited decision, and that the 1927 case of McGrain v. Daugherty upheld the right of congressional committees to compel witnesses to testify and produce records.
The case of McGrain v. Daugherty arose out of the Teapot Dome scandal investigation of the 1920s. It was the same case that was cited by various congressional committees in 1956 as authority for insisting on testimony and records from government agencies.
The letter Gerald Morgan wrote me was not what I wanted, and it certainly was inconsistent with the principles he had set forth in his 1949 law review article (see Appendix B). But it did demonstrate some desire to come to grips with the problem. He wrote:
“An employee is not free merely to exercise his own discretion (with regard to testimony and production of documents), but in the final analysis information will be withheld only when the President or agency heads acting under the President’s authority or instruction determine it is contrary to the public interest to disclose it.”
Inasmuch as the letter suggested that information should be given to committees of Congress unless there was a specific order to the contrary from the President, Congressman John Moss thought it portended an easing of the restrictions on information. At least he hoped it did. How futile was his hope we were soon to see.
Unfortunately, the Congress had to rely to a large extent on the Justice Department in normal moves to take court action against any government officials who refused to give testimony. So, although the case of McGrain v. Daugherty upheld the right of Congress to demand testimony and records, there was yet a practical problem involved. Congress had to depend on the good faith of the Attorney General and his top aides to enforce its demand.
A case in point occurred in the summer of 1956 when the Justice Department used the secrecy of “executive privilege” in an effort to block an investigation of a settlement of an antitrust suit. The antitrust suit involved American Telephone and Telegraph (A.T. & T.), and the investigation was being conducted by Representative Emanuel Celler’s antimonopoly subcommittee of the House Judiciary Committee. Chief Counsel Herbert Maletz was instructed by Celler to obtain the Justice Department files to determine the facts leading up to the settlement of the A.T. & T. antitrust suit.
The suit had been initiated by the Department in 1949 for the purpose of forcing a divorce of A.T. & T. and its subsidiary, Western Electric. The separation was urged to break the near monopoly that Western Electric enjoyed in the production of telephone equipment.
The suit had been hailed by Attorney General Herbert Brownell as a great victory for the government, but he and Deputy Attorney General William P. Rogers claimed “executive privilege” and refused to make the files available. They covered up the fact that the settlement allowing A.T. & T. to continue the ties with Western Electric was made over the opposition of staff members in the Justice Department.
Although Herbert Maletz was blocked from examining the files of the Justice Department, he managed to obtain much of the information he sought from the files of A.T. & T. and from records in the Defense Department. This outside probe uncovered some interesting things that Justice Department secrecy had hidden. It showed that a high official of A.T. & T. had written a letter which Defense Secretary Charles E. Wilson sent to the Justice Department urging settlement of the antitrust suit on terms favorable to A.T. & T. The investigation also revealed the conversations between Attorney General Brownell and a lawyer for A.T. & T. that paved the way to settlement.